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The Reckoning: A Looming Decision on Endangered Salmon by Paul VanDevelder The Oregonian, February 12, 2011

A looming decision on endangered salmon will set the stage for momentous battles over the future

Sometime this spring, a federal district court judge in Portland will render a decision based on the federal Endangered Species Act that will determine the fate of two dozen endangered salmon stocks that spawn in rivers from Sacramento to British Columbia. Just another ho-hum environmental lawsuit? Don't bet on it.

Judge James A. Redden's decision promises to be as momentous as any court-ordered environmental remedy in our lifetimes, the Dred Scott of environmental law. Of the many battles waged in the wake of the Endangered Species Act, no other beast, fish or fowl has created a more politically charged -- or more expensive -- fight than West Coast salmon.

On one side of the battle are conservationists, coastal fishing communities, the state of Oregon and the Nez Perce tribe -- parties that would sacrifice some degree of economic advantage for the sake of sustainable co-existence with another species.

Arrayed against them are hydropower interests, aluminum industries, agribusiness, barge operators and their political allies in Idaho, Washington and Montana -- parties who just as readily claim dominion over resources in the natural world in order to benefit and enrich the human one.

It would be a mistake to view this as a routine battle between old adversaries. The sides in this struggle represent profoundly divergent views that reflect deep philosophical divisions in our society and in the human community at large.

Over the past two decades, the court has learned a thing or two about the viewpoints held by both sides. As fish counts plummeted, and as billions of taxpayer dollars were flushed out to sea in failed remedies, the court discovered that we cannot politically compromise our way around extinction. Political compromise often succeeds in resolving conflicts in complex human endeavors. But it has little or no ability to recalibrate imbalances in ancient and complex ecosystems. Beyond the shadow of any lingering doubt, salmon have shown us that political compromise is powerless to stop the relentless ticking of the extinction clock.

To pull off that miracle, to stop the clock, the EPA's authors wisely placed the responsibility for recovering threatened and endangered species with "the best available science." If the best available science succeeds in pulling these fish back from the brink of extinction, it will be the result of court-ordered measures that are certain to be very painful to the dominionists. If, on the other hand, the status quo prevails and the fish head into extinction, you and I, American taxpayers -- by terms of a 1995 treaty with Canada and five Columbia River salmon-treaty tribes -- will be on the hook for $30 billion in penalties for failing to uphold our end of the bargain. Either way, the outcome of this legal war is going to be very expensive and very painful.

For whom and for how much is not Judge Redden's overriding concern. The question that keeps him awake at night is simply this: After all the bills are paid, will there be fish?

The dominionists, like the courts and the conservationists, have also learned a thing or two over the past 20 years. When recovery strategies proposed by conservationists challenge their objectives (and that's the case about 90 percent of the time), they compensate for their losses in the court by politicizing or suppressing the "best available science."

That was the strategy used by both the Clinton and Bush administrations. Both presented the court with two separate biological opinions -- a "bi-op," as it's called -- each intended to be a science-based blueprint for recovery required by the Endangered Species Act. Each of the four plans sought to finesse scientific realities on the river to political expedience in Washington, D.C. In the end, all four plans were rejected by the court because they failed to put the scientific needs of the fish ahead of the political demands of the stakeholders.

The Bush administration's first effort was "so cynical and shameful," said Redden, that it flunked the straight-face test. Then, after a two-year-long drum roll, Bush's second effort was scarcely better. At that late hour on the extinction clock, a frustrated Redden convened the plaintiffs and defendants in his courtroom and told them he was running out of patience. The endless foot dragging and gamesmanship had to stop. If the two sides could not put politics aside and come up with a viable plan to save the fish, the court would do it for them.

The election of Barack Obama brought a freshet of optimism to the long-beleaguered scientists in the salmon fight. Obama called for "new transparency" in science, and his director of the National Oceanic and Atmospheric Administration, Jane Lubchenco, a zoologist from Oregon State University with impeccable scientific credentials, avowed that the age of suppressing science for political gain was over. "Science will be respected at NOAA; science will not be muzzled," she declared.

But as journalist Steven Hawley documents in his forthcoming book, "Recovering a Lost River" (Beacon Press, Spring 2011), which exposes the fine-grain detail in the plots and subplots of this convoluted drama, things haven't worked out that way for Obama and Lubchenco -- either on the Columbia River or in Washington, D.C.

Lubchenco's boss, Gary Locke, the former governor of Washington state, is now secretary of commerce in the Obama administration. Locke and his protégés in the U.S. Senate, Maria Cantwell and Patty Murray, all earned their bona fides in a state where rising political fortunes are correlative to unwavering loyalty to the dominionists. Accordingly, in July 2009, Locke contacted Oregon Gov. Ted Kulongoski to let him know that the Obama administration would be adopting the second Bush bi-op as its own, with a few minor changes to make it more agreeable to the court. Documents obtained through the Freedom of Information Act reveal that about that same time, aides to Murray and Cantwell, Jamie Shimek and Joel Merkel, respectively, handed Lubchenco a directive from their bosses at a private meeting in Washington, D.C.

There, in black and white, were Lubchenco's marching orders. The litany of instructions from the two Washington senators stipulated what she could say, and to whom she could say it, when she traveled to Portland to attend a hearing in Redden's court. Cantwell, who chairs the Senate Subcommittee on Oceans, Atmosphere, Fisheries and Coast Guard, holds the purse strings for Commerce and NOAA. The identity of the ventriloquists behind the curtain was now clear.

Shimek and Merkel instructed Lubchenco to be "discreet," to meet only with "sovereigns," and to "avoid all public meetings and groups that had gone political" in the battle over salmon.

In a subsequent e-mail to her colleagues at NOAA, Lubchenco complained bitterly that, "Our decision to meet with only sovereigns, as per the VERY strong guidance from the WA senators ... only invites conspiracy theories ... and fuels the fires and craziness" of public demonstrations.

Nevertheless, Lubchenco followed the script. Later, she lamented to close friends and colleagues in the scientific community that she was handcuffed by the cabal from Washington state.

To make matters worse for the dominionists, FOIA-obtained e-mail chains uncovered a smoking gun: top-level BPA administrator Lorri Bodi -- in brazen defiance of Judge Redden's instructions to the defendants in the lawsuit -- was personally managing an in-house campaign to suppress the opinions of aquatic scientists calling for increased spills from dams as a baseline requirement for any viable recovery plan on the Columbia and Snake rivers.

Meanwhile, as the government's position on recovery science grew less "transparent" with every passing day, more than a hundred aquatic biologists signed and delivered a letter to Redden asserting that the Obama bi-op -- endorsed by Lubchenco and her ventriloquists on Capitol Hill -- offered even fewer protections for salmon than bi-ops previously rejected by the court.

This isn't Redden's first rodeo. He knows what's going on out there in the land of Oz. The administrative record in the court makes it crystal clear that the so-called "Fish Accords" that were dreamed up by the BPA to reward silence from treaty tribes and to distribute tens of millions of dollars to compliant tribes and state governments in Helena, Boise and Olympia in exchange for their tacit support, are nothing more than a Potemkin village for suppressing "the best available science."

Redden is well aware of the behind-the-curtain efforts. Like others before them who have tried similar strategies their efforts will likely come to naught. With all of this obfuscation and puppeteering as prologue, there's a better than even chance that Redden will finally give the salmon the relief they need to stop the extinction clock: cold, free-flowing water.

As the special master of the Columbia River Basin, Redden, a bespeckled, straight-shooting, no-nonsense veteran of the federal bench, plays the role of Solomon on all questions pertaining to water and fish. Whatever he decides, wherever he draws the line on human impacts, his word is final. Those who don't like it can rant and rave until they turn blue with orange polka dots. It will do them no good. Until the day Congress rewrites the Endangered Species Act, Redden is the last man standing on the Columbia. He alone is legally responsible for making sure West Coast salmon don't go the way of the dodo. He alone will give the nod to a future controlled by dominionists or conservationists.

It is the irony of all ironies that this man, who by his own admission doesn't even care to eat salmon, will forever be linked to the fish.